State v. Kuzma

• Decision Date: 17 November 1987
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Bruce R. KUZMA, Appellant. 38338.
• Court: Missouri Court of Appeals

Page 54

751 S.W.2d 54

STATE of Missouri, Respondent, v. Bruce R. KUZMA, Appellant.

No. WD 38338.

Missouri Court of Appeals,

Western District.

Nov. 17, 1987.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

Dec. 29, 1987.

Application for Transfer Sustained Feb. 17, 1988.

Case Retransferred May 18, 1988.

Court of Appeals Opinion Readopted May 31, 1988.

Kathleen Murphy Markie, Lew A. Kollias, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, P.J., and NUGENT and LOWENSTEIN, JJ.

NUGENT, Judge.

Defendant Bruce R. Kuzma appeals his convictions by a jury for sodomy and first degree sexual abuse. Among his complaints he claims that his identity as the perpetrator was not established beyond a reasonable doubt. Finding that point dispositive of this appeal, we reverse and order the defendant's discharge for the reasons set forth below.

On May 18, 1985, the marital difficulties between the defendant and his wife of twenty months were aggravated by an overnight visit from her former husband, who had come to spend time with Theresa and David, the natural children of his marriage to Mrs. Kuzma. During the two day visit, he and Mrs. Kuzma took the children on various outings and he spent the night in his son's room. A similar visit had taken place at some earlier time. On May 26, the defendant, distraught over his failing marriage, moved out of the house he shared with Mrs. Kuzma and her two children.

In late May, after the defendant and Mrs. Kuzma had separated, five-year-old Theresa told her grandmother and later her mother about a recent incident of sexual abuse involving the defendant. Around May 31, Mrs. Kuzma took the little girl to the police department to report the incident. In fact, Mrs. Kuzma had to take the child to the police station at least four times before she was able to give "a usable statement." At some point, the police advised Mrs. Kuzma that the child should have a medical examination. Around the 18th of June, she was examined at the emergency room of Children's Mercy Hospital. The only physical problem that came to light was redness on her legs, evidently on her inner thighs.

At the time of trial on March 17, 1986, the little girl was six years old. After she was sworn to testify, the defendant objected to her competence, incorporating by reference the arguments set forth in his motion to challenge the competence of witnesses, but the trial court overruled the objection. Theresa testified that at an earlier unspecified date, ¹ when defendant had been babysitting her, he gave her a spanking after she disobeyed him and rode her bicycle. She stated that the defendant also removed her clothes, "stuck his finger in" her "bottom" and stuck one finger in her "potty" place in the front of her body. He then threatened to spank her if she told anybody, but she immediately told her brother David about the incident. In response to the prosecutor's questions she affirmed that defendant had done something "like this" when she lived in Bonner Springs, Kansas.

During cross-examination, the child admitted that she once told her mother and her grandmother that her natural father had molested her, not the defendant. She also stated that she called both men "Daddy" and sometimes referred to the defendant as "Daddy Bruce." Defense counsel, apparently referring to statements she made in a deposition ten days earlier, reminded Theresa that at that time she had forgotten what parts of her body the defendant had touched and she acknowledged that she had forgotten. When asked if she knew now what she had forgotten, she first said, "Now I do," but later said, "No." Then, she stated that the incident had taken place in Bonner Springs where the defendant and her family used to live. She explained that she thought the defendant had committed the acts at two different times, in contrast with her testimony on direct examination that the incident had occurred only once when she lived on 56th Street.

At that point, defense counsel began to question the child about whether she knew the difference between telling the truth and telling a lie, again reminding her of what she had said in her deposition. She acknowledged that telling a lie was "some English" and "bad moon shine" as opposed to "good moon shine." However, she could not remember what kinds of things happen if she told the truth or what things happen if she told a lie. She agreed that she needed help from members of her family to remember everything that happened because by herself she did not remember.

On redirect examination, she affirmed that the defendant was the only one who had ever done "anything like this" to her.

Her brother, eight-year-old David, testified generally about the defendant's relationship to him as a step-father and that his sister had discussed an incident involving the defendant with him. He acknowledged that he also called both the defendant and his natural father "Daddy." When he later testified in rebuttal, the prosecutor reminded David that the oath he had taken earlier requiring him to tell the truth was still in force. When asked if he understood that, David said, "Yes." However, ten days before trial, he had stated in his deposition that he might tell a lie in return for three scoops of ice cream.

David testified that when he was about five years old, defendant had anally sodomized him, but on cross-examination he changed his story. He said that after they had showered and when he was fully clothed and the defendant was shaving while dressed in his underwear, the defendant had accidentally bumped against David's backside. On redirect examination, the boy stated that the defendant, clad in his underwear, merely brushed against him. However, he later indicated that he once felt the defendant's penis inside his bottom "on accident" when the family lived at a previous address. As it had with Theresa, the court permitted David to testify without first determining the boy's competence as a witness.

Mrs. Kuzma gave the following testimony bearing on the issue of the identity of the perpetrator. She admitted that on more than one occasion she had suspected her former husband of sexually abusing Theresa and had also suspected her own brother, particularly one time when the children visited him for about six weeks. Mrs. Kuzma stated, however, that during her former husband's overnight visit with his children in May, 1985, he was never alone with Theresa.

On cross-examination, Mrs. Kuzma admitted that she spoke with the defendant by telephone a number of times after May 15, and that she said at various times words to the effect that if the defendant "thought he'd already been destroyed, just wait, things were going to get worse." She also agreed that she had told the defendant in a number of conversations that "this particular situation" never would have arisen if he had not left home. Defense counsel asked Mrs. Kuzma if she recalled talking with the defendant and Theresa on the front porch of their house around June 2, 1985, when the child specifically stated that her real father, not the defendant, had recently molested her. Mrs. Kuzma agreed that Theresa might have made such a statement but did not recall her having done so.

Defendant testified in his own behalf. He denied ever having inserted his hands, fingers or any part of his body into Theresa's vaginal area, or ever having touched her in a sexual manner. However, he acknowledged that in May, 1985, he was alone with her for about two hours every afternoon, from the time she returned from child care in the mornings until her mother came home from work after 3:30 p.m.

He stated that he left the family home on May 26, 1986. The record suggests that Theresa had already told her grandmother and her mother about the sexual abuse at that time and that the defendant was aware that Mrs. Kuzma had sought his arrest. The defendant first went to Sacred Heart Church, then headed by car for the Clay County Jail "to turn himself in." A Claycomo police officer observed him driving erratically and stopped him to see if he was intoxicated. The defendant testified that he was hysterical at the time because Detective Howard Taylor ² had told him that if he were not going to take a polygraph test, he might as well plead guilty to the charges of sexual abuse and accept a plea bargain. Believing that he could not defend himself against the sexual abuse charges, the defendant decided to commit suicide in his car. He said that he had a knife in his hand aimed at his chest and was about to stab himself when the officer pulled him over. Defendant told the officer that nobody would believe him because he was "going up against two kids," ³ and later commented, "I don't deserve to live in this cruel world." The defendant was taken by ambulance to Tri-County Community Health Center where he voluntarily committed himself and stayed for two weeks.

Sergeant Joseph Gorman told a different story. He testified that he came in contact with the defendant when he responded to a call for assistance from one of his men. The defendant did not appear to be drunk but was highly distressed and crying. According to Sergeant Gorman, the defendant continuously aimed a folding knife at his lower genital area and was saying that he "was gonna cut his dick off and that he didn't deserve to live." The defendant's pants were unbuttoned and partially unzipped but no part of his body was exposed. When Sergeant Gorman asked him why he was so distraught, the defendant stated that he had been told by a Kansas City detective that a warrant had been issued--or soon would be--for his arrest. Finally, the two police officers wrested the knife from him, read him the Miranda warning and took him to the police station.

Defendant claims that the trial court erred in overruling his motion for acquittal at the close of all the evidence...